Pulling a rug out from under generals. Constitution seeks to undo the legacy of military rule

By
Julia Michaels, Special to The Christian Science Monitor /
September 12, 1988

Sao Paulo, Brazil

BRAZIL'S new Constitution is not something you would tape up on your wall. Nor would you attempt to memorize it in a social studies class. At 245 articles, the thick charter is not exactly portable. But it is a document that many Brazilians will be studying closely over the next few years, as they learn about the new rights it gives them.

The new Constitution, completed Sept. 2, seems set to consolidate democracy after 21 years of military rule. It alters the relations between individual and state, capital and labor, and local and federal government. Above all, it curbs the presidency's almost imperial powers.

Drawn up by the 559-member Constituent Assembly over the last 19 months, the new Constitution is the seventh one Brazil has framed since its independence from Portugal in 1822. The charter replaces one drawn up by the generals that ruled this country between 1964 and 1985.

Like the Philippines' massive 24,000-word Constitution, the new Brazilian document is long. Brazilians prefer to leave little room for judges to interpret the law, as they do in the United States. Instead, the idea is to ensure justice by anticipating as many situations as possible, writing down each legal precept.

Like the US Constitution, the new charter does provide for general liberties such as human rights and freedom of speech. But it also includes articles that reduce the work week, punish corruption in public office, and set up small-claims courts.

Even with this kind of detail, most people are not sure how the Constitution will apply to them or if it will really be enforced. After all, previous legislation has called for sweeping land reform, a precept that has never been put into practice. But the new Constitution does allow citizens to push laggard legislators in court to pass any laws needed to enforce a constitutional right.

Most of the charter seeks to undo the legacy of military rule.

That rule began with a coup against a civilian government in 1964. The coup allowed the Brazilian military to create a ruling machine centered around the presidency. The president ruled by decree; the judiciary and legislative branches of government were practically nonexistent; individual citizens had few ways of protecting their rights.

Brazil in the late 1960s and early '70s saw indiscriminate arrests and torture. But in the late '70s, the military - faced with rising opposition to authoritarianism - began a period of political relaxation. For the first time since the generals took charge, a civilian president was elected in 1985. The president elect, Tancredo Neves, died before he could be inaugurated. But his successor, Jos'e Sarney, kept his pledge to preside over the drafting of a new charter.

The Constitution fights the past on two fronts: individual rights and the balance of power.

On the first front, the police can no longer make indiscriminate arrests, and must read rights to those arrested. Judges may not set bail for persons accused of torture. Citizens have access to their police and other government records. The government may not read private correspondence and can only tap a telephone after receiving a court order. The new charter bans virtually all censorship.

On the second front, the new document shifts power from the presidency to the bicameral National Congress, the judiciary, and local officials. The executive no longer rules alone. Congress now has a say on the budget, foreign debt agreements, and the drafting of national laws. The court system has gained financial and administrative autonomy and become more accessible. Brazilians may now bring class-action suits, for example.

The Constitution also gives a greater share of tax revenues directly to state and municipal governments, which now depend on federal handouts. This will make local government more powerful and more accountable. The old charter forced recipients of federal funds to haggle with ministries in Brasilia, or use congressmen as intermediaries. In the process, corruption was easily hidden from the folks back home.

But consensus on the Constitution's political framework was not matched by a consensus on its economic measures. Brazil's urban elites felt the government should get out of the economy and open it up to foreign investment and greater competition; those who drafted the charter disagreed. The representatives favored Brazilian-owned firms in mining, government contracts, and petroleum exploration. Thus the new charter protects the interests of some local businesses that grew strong during the years of economic development under the military.

The Constitution also reflects many Brazilians' disgust with banks, whose profits have swelled with the growth of inflation. (Prices are rising at 20 to 24 percent per month.) The new charter limits interest on bank lending and government bonds to 12 percent a year, over and above inflation. No one is sure how this will affect the government's ability to control the money supply and inflation, though some economists say it will fan the inflationary flames.

To businessmen's dismay, Brazil's low-paid workers also benefit from the new charter. A new law extends the right to strike to public employees and ``essential'' services, such as transport, medicine, and electricity. The charter also reduces work done in shifts to six hours, from the current eight-hour day. Paid maternity leave has been increased to four months from three, and paternity leave is provided for the first time.

Congress is to take a final vote on the new document Sept. 22. It is scheduled to go into effect Oct. 5, when it is supposed to enter a five-year trial phase. In 1993, Congress will review it and make any needed changes. There will also be a plebiscite that year to determine the citizens' preference for a presidential, parliamentary, or monarchical system of government.

The presidential-parliamentary question was the source of bitter debate and conflict between Congress and President Sarney, as was the length of his current term. To his relief, the lawmakers decided he would govern for five years under a presidential system of government, as will his successor.

The new charter sets the date for the first direct presidential election in 28 years - Nov. 15, 1989.

In that election, Brazil will become one of the world's only nations to extend the franchise to 16-year-olds.